Ohio Public Interest Action Group, Inc. v. Public Utilities Commission

331 N.E.2d 730, 43 Ohio St. 2d 175, 72 Ohio Op. 2d 98, 1975 Ohio LEXIS 559
CourtOhio Supreme Court
DecidedJuly 16, 1975
DocketNo. 74-1032
StatusPublished
Cited by30 cases

This text of 331 N.E.2d 730 (Ohio Public Interest Action Group, Inc. v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Public Interest Action Group, Inc. v. Public Utilities Commission, 331 N.E.2d 730, 43 Ohio St. 2d 175, 72 Ohio Op. 2d 98, 1975 Ohio LEXIS 559 (Ohio 1975).

Opinion

Corrigan, J.

The first three of appellant’s propositions of law are directed to the applicability of Section 9 of Amended Substitute House Bill 206 to the proceedings being conducted by the Public Utilities Commission, pursuant to appellant’s complaint.

I.

Appellant’s initial contention is that Section 9 cannot affect the proceedings or the commission’s investigation because Section 9 “contains a savings clause which saves and makes the law under which these cases have been initiated still applicable.” The “savings clause” referred to by appellant is the language of the statute which excepts from its terms restrictions on advertising which were “* * * otherwise expressly provided by law or by rules properly adopted in accordance with law and in effect on March 1, 1974.”

It is appellant’s position that R. C. 4905.26, under which the present proceedings were being conducted at the time of the enactment of Amended Substitute House Bill 206, is a “law” which was “in effect on March 1, 1974” and that R. C. 4905.26 vests the commission with authority “to regulate advertising or promotional activity of any sort by public utilities.”

[180]*180R. C. 4905.26 provides, in pertinent part:

“Upon complaint in writing against any public utility b.y any person, firm, or corporation, or upon the initiative or complaint of the Public Utilities Commission, that any rate, fare, charge, toll, rental, schedule, classification, or service, or any joint rate, fare, charge, toll, rental, schedule, classification, or service rendered, charged, demanded, exacted, or proposed to be rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by said public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained, and, upon complaint of a public utility as to any matter affecting its own product or service, if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof, and shall publish notice thereof in a newspaper of general circulation in each county in which complaint has arisen. * * *”

Appellant argues that R. C. 4905.26 gives the commission “power to regulate the promotion of area development and advertising” and that the “savings clause” of Section 9 expresses a legislative intention that Section 9 “would not affect any proceedings pending under any law which had prior to March 1, 1974 already given a ‘state agency, board, or commission’ such power.”

R. C. 4905.26 sets out a procedure for the commission to investigate the matters therein enumerated. Assuming that R. C. 4905.26 empowers the commission to investigate the matters raised in appellant’s complaint, that investigative authority itself does not constitute a “law” or a “rule” restricting advertising by utilities which was in effect on March 1, 1974. The pendency of proceedings, pursuant to R. C. 4905.26, which could have resulted in an order by the commission regulating advertising by utili[181]*181ties, did not therefore constitute a “law” or “rules properly adopted in accordance with law” so as to bring the proceedings within the exceptions enumerated in Section 9.

II.

Appellant’s second contention regarding the applicability of Section 9 is that “* * * [R. C.] 1.58, the general savings clause, applies and saves the laws under which the * * * proceeding and commission investigation were being prosecuted * *

R. C. 1.58 provides, in part:

‘ ‘ (A) The reenactment, amendment, or repeal of a statute does not * * * :

“ (1) Affect the prior operation of the statute or any prior action taken thereunder;

“(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;

U # * *

“(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.”

R. C. 1.58 is concerned with the effect which reenactment, amendment or repeal has upon statutes. For its provisions to apply here it would be necessary to first conclude that R. C. 4905.26 has been repealed by Section 9. Appellant argues that the effect of Section 9 diminished the broad general powers of the commission “* * * to the extent that they no longer include the power to regulate promotional activities or advertising” and that this amounts to a pro-tanto implied repeal of R. C. 4905.26.

Section 9, of course, does not expressly repeal R. C. 4905.26. It prospectively prohibits any action on the part of a state agency, board or commission which would limit or restrict the right of any public utility to engage in and promote area development or to advertise. "When Section [182]*1829 became effective, the proceeding’s instituted by appellant, under R. C. 4905.26, were not concluded and no final order affecting substantive rights had been entered. The General Assembly, by enacting Section 9, prospectively prohibited the commission from making an order such as that sought by appellant which could have resulted in limiting or restricting the right of a public utility to engage in and promote area development or to advertise. The General Assembly did not thereby affect the procedure established by R. C. 4905.26 for investigation of matters therein enumerated and therefore did not repeal R. C. 4905.26 by implication. Since R. C. 4905.26 was not repealed by Section 9, R. C. 1.58 is not applicable.

III.

Appellant’s third contention in respect to the application of Section 9 is that its application violates constitutional provisions prohibiting retroactive legislation. As observed above, Section 9 prospectively prohibited the order sought by appellant prior to the conclusion of the commission proceedings. Inasmuch as the commission dismissed the proceedings and no final order on the merits was entered prior to the effective date of Section 9, no vested substantive rights of appellant were affected by the dismissal of the complaint. The operation of Section 9 was therefore not retroactive.

IV.

In its fourth proposition of law, appellant asserts that commercial advertising does not constitute “speech” within the meaning of the First Amendment to the United States Constitution and may be regulated by the commission. If Section 9 is valid, it is not necessary to here consider the question whether the commission may regulate advertising without violating constitutional principles of free speech, as Section 9 effectively prohibits any such regulation by the commission in the instant proceedings.

V(A).

Appellant’s propositions of law five and' six question generally the validity of Section 9. Appellant urges that [183]

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Bluebook (online)
331 N.E.2d 730, 43 Ohio St. 2d 175, 72 Ohio Op. 2d 98, 1975 Ohio LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-public-interest-action-group-inc-v-public-utilities-commission-ohio-1975.